from the good-for-them dept

We had already mentioned that one of the foremost Constitutional scholars around, Laurence Tribe, had come out against Congress's attempts to modify copyright law through SOPA. Some complained that he didn't get into specifics. However, he's now sent a letter detailing the problems in the bill (pdf) and why it violates the First Amendment. There are many, many reasons, with lots of details and citations, but here's just an example:

The notice-and-termination procedure of Section 103(a) runs afoul of the “prior
restraint” doctrine, because it delegates to a private party the power to suppress speech without
prior notice and a judicial hearing. This provision of the bill would give complaining parties the
power to stop online advertisers and credit card processors from doing business with a website,
merely by filing a unilateral notice accusing the site of being “dedicated to theft of U.S.
property” – even if no court has actually found any infringement. The immunity provisions in
the bill create an overwhelming incentive for advertisers and payment processors to comply with
such a request immediately upon receipt. The Supreme Court has made clear that “only a
judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of
expression [and] only a procedure requiring a judicial determination suffices to impose a valid
final restraint.” Freedman v. Maryland, 380 U.S. 51, 58 (1965). “[P]rior restraints on speech
and publication are the most serious and the least tolerable infringement on First Amendment
rights.” Nebraska Press Assn. v. Stuart, 427 U.S. 539, 559 (1976).

Tribe also points out the deficiencies in his "friend" Floyd Abrams' analysis of the First Amendment issues here:

However, I part company
with Mr. Abrams on this issue. I believe his letter provides an excellent explanation of why existing law, including the Digital Millennium Copyright Act, is on the whole consistent with the
First Amendment, but I do not believe his letter adequately analyzes or even meaningfully
confronts the sweeping changes that SOPA would enact. Indeed, Mr. Abrams ultimately
acknowledges that the remedies under SOPA may result in “the blockage of non-infringing or
protected content.” (Letter of Nov. 7, 2011 from Floyd Abrams to Hon. Lamar Smith, at 12
(emphasis added).) He acknowledges that seizure powers under the copyright law must be
exercised with “due regard to First Amendment considerations” (p. 4) and that “[t]he Internet is
one of the greatest tools of freedom in the history of the world.” (p. 2) He also recognizes that
“[i]t is a fundamental principle of First Amendment jurisprudence that government restrictions
on speech should be narrowly tailored to avoid unnecessarily burdening protected speech.” (p.
10).

These concessions go to the heart of the constitutional defect evident on the face of
SOPA. Although the problems of online copyright and trademark infringement are genuine,
SOPA is an extreme measure that is not narrowly tailored to governmental interests. It is a
blunderbuss rather than a properly limited response, and its stiff penalties would significantly
endanger legitimate websites and services. Its constitutional defects are not marginal ones that
could readily be trimmed in the process of applying and enforcing it in particular cases. Rather,
its very existence would dramatically chill protected speech by undermining the openness and
free exchange of information at the heart of the Internet. It should not be enacted by Congress.

Later, as he dives into even more detail, he explains why Abrams' analysis totally misses the mark:

Mr. Abrams stresses “[t]he Supreme Court’s most detailed treatment of the
interrelationship between the First Amendment and copyright, the seminal case of Harper &
Row Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985).” (p. 3). Yet the Harper & Row
case involved a traditional, time-honored copyright principle – the “fair use” doctrine – not a
radical departure from the familiar contours of copyright law like the provisions of SOPA.
Harper & Row did not hold that any kind of revolutionary, speech-suppressing statute would be
constitutional, so long it was wrapped in the mantle of copyright law. In fact, in a subsequent
case, the Supreme Court made clear that copyright statutes are not “categorically immune” from
First Amendment scrutiny and explained that the approach of Harper & Row applied only “when
. . . Congress has not altered the traditional contours of copyright protection.” Eldred v.
Ashcroft, 537 U.S. 186, 221 (2003). Whatever else may be said of SOPA, it certainly “alters”
those contours.

The fact that SOPA’s purpose is the protection of intellectual property rights does not
change the constitutional calculus. Benign motives do not shield legislation from First
Amendment scrutiny, nor is “[i]llicit legislative intent . . . the sine qua non of a violation of the
First Amendment.” Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U.S.
575, 592 (1983). The Supreme Court has “long recognized that even regulations aimed at proper
governmental concerns can restrict unduly the exercise of rights protected by the First
Amendment.” Id. at 592; see also Simon & Schuster, Inc. v. Members of N.Y. State Crime
Victims Bd., 502 U.S. 105, 117 (1991) (striking down law despite absence of evidence that “the
legislature intends to suppress certain ideas”); Arkansas Writers' Project, Inc. v. Ragland, 481
U.S. 221, 228 (1987) (speaker need adduce “no evidence of an improper censorial motive” in
order to invalidate law).

these bills target considerable speech by speakers who are engaging in no direct or indirect infringement, from websites "enabling" infringement to advertisers engaged in truthful, non-infringing commercial speech and search engines delivering results. Because these bills restrict considerable protected non-infringing speech, several different doctrines would trigger standard First Amendment scrutiny . These doctrines include the Supreme Court's doctrines of overbreadth, vagueness, and prior restraint, as well as its decisions in United States v. Stevens and Eldred v. Ashcroft. Standard First Amendment scrutiny, not any standard applicable to copyright infringement, would logically apply for restrictions on non-infringing, protected speech by search engines, domain name providers, and advertisers. Under standard First Amendment scrutiny, both PROTECT IP and SOPA are clearly unconstitutional in restricting these categories of protected speech.

How much longer will supporters of these bills continue to trot out just Floyd Abrams, as if he's the only voice on the matter?

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"How much longer will supporters of these bills continue to trot out just Floyd Abrams, as if he's the only voice on the matter?"

You completely misunderstand. They don't think Floyd Abrams is the only voice that matters.

They think the only voices that matter are those of a few studio executives and recording companies that can afford to lobby congress, even if their actions are ultimately self defeating and a betrayal to the American people.

The fact they were able to pay a well known lawyer to agree with them is just gravy.

'How much longer will supporters of these bills continue to trot out just Floyd Abrams, as if he's the only voice on the matter?'

for as long as they can keep 'encouraging' Congress to side with them and for as long as they can keep conning the people. sooner (hopefully) than later, the entertainment industries will be shot down! if the Bills go through, as soon as it is reported that x number of people have lost their internet connection, been sued, been fined or been jailed, all on possible false evidence and simply the demands from those industries, uproar could ensue. when the Internet grinds to a near halt and the economy suffers, perhaps then those in power will be brought to task!

" Mr. Abrams ultimately acknowledges that the remedies under SOPA may result in “the blockage of non-infringing or protected content.”"

Which is something the courts have already held as constitutional. Some protected speech may be harmed when unprotected speech is removed, this in part keeps offenders from using small amounts of protected speech as "human shields" against legal action.

I am surprised that any scholar would be arguing about something the courts have long since established as legal and acceptable.

Why dont the sopapilla supporters stop beating around the bush and simply ask for what it is they all really want - total annihilation of the internet ... oh yeah, because then they would be terrorists and locked up in gitmo.

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Which is something the courts have already held as constitutional. Some protected speech may be harmed when unprotected speech is removed, this in part keeps offenders from using small amounts of protected speech as "human shields" against legal action.

I think that you will find that SOPA/PIP will affect far more than just "human shield" style speech. The fact that there may be an exception for cases where small amounts of "protected speech" are being used cynically does NOT mean that this law is OK.

In fact you yourself are using this exemption cynically because we all know that SOPA PIPA is really about shutting down all user generated content on the internet and turning it into something big content companies can control.

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SOPA has nothing to do with shutting down user generated content - it is about taking it counterfeit and copyright violating websites.

If you make content, all original, it is yours to do with what you like. My personal recommendation is not to put it on sites that feature plenty of pirated stuff or "remixes" that have no legal basis.

I am actually suspecting that SOPA will be the trigger for many more online co-op style sites, where artists who know each other work together, and where "user generated" content is evaluated and run only when it is shown to be legal.

SOPA is not at all about shutting down any legal content. Are you suggesting that all user generated content is in violation of copyright?

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Because, in that case, there is a counternotice procedure. There is no counternotice procedure in SOPA/PIPA. No courts are involved in the first step, but to prevent that from happening in SOPA/PIPA, you have to go to court after you've been shut off.

I guess you know already that criminal proceedings are often brought by the State, while civil proceedings are often brought by private citizens (although this isn't a hard-and-fast rule).

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Under the DMCA, the notice and takedown is for a specific piece of content. A single Video. A single song. A single file.

Under SOPA/PIPA, the notice and takedown is for an entire site, no matter what the ratio of legal to illegal content is.

That is why DMCA can be seen as constitutional, although it does have its issues with its notice, takedown, counter notice, restoration procedure. That is why SOPA/PIPA is unconstitutional because it unfairly effects legal speech in its attempts to block illegal speech.

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"I am actually suspecting that SOPA will be the trigger for many more online co-op style sites, where artists who know each other work together, and where "user generated" content is evaluated and run only when it is shown to be legal."

contradicts

"SOPA has nothing to do with shutting down user generated content"

You're naive or a liar if you think that a "only allowed if shown to be legal" bar won't effectively kill user generated content. It's equivalent to the police closing down your store and demolishing it because one of your customers happened to do something illegal while in your store.

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Then make it criminal to lie about or try to deceive the courts to take down protected speech and other legal companies, also make it so that if mistakes are made the one responsible for it pay for it, why is that not in there?

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Because there is no notice-and-takedown in a matter of fact inside SOPA, how hard was that?

There is no court involvement when anyone claiming to be a content owner can just ask financial institutions to stop doing business with others on their say so and have to comply in 5 days or be open to litigation while the guy doing the asking has no obligation to state the truth and will not be hold accountable for what he did, since the incentives are not there for people to fight this, nobody is going to fight over a free blog shutdown, or a $100 dollar hosted blog not inside the US and even more so for people outside of it that would find it very difficult to hire a lawyer in foreign land, so only the people with real cash will be the ones doing anything, and that is just the tip of the iceberg there.

Here's the cause, though: 'from websites "enabling" infringement'

Your position always ends up enabling infringement. And you keep reaching for abstract First Amendment cover while promoting actual piracy.

This isn't as above, that "one of your customers happened to do something illegal while in your store", it's putting a big sign saying "THOUSANDS OF LINKS TO FREE INFRINGING CONTENT HERE! LATEST MOVIES! STEAL 'EM WHILE THEY"RE HOT!", then claiming that you know NOTHING about infringement, are NOT at all facilitating it, and have NO responsibility to respect copyright even to prohibiting the links, no control over your own site, no sway over users -- and aren't getting money from the eyeballs on ads! It's an extremely narrow legalistic position that fails the common sense test.

With heaps of money at stake (or just forget about control over distribution?), there's going to be a reaction. Blame Mike for providing a plausible justification for piracy, that his band of pirates picks up and echoes without thought.

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Huh? The one filing the notice does so under penalty of perjury, just like the DMCA if I recall correctly. There's no court involvement with a DMCA takedown notice either. I'm just trying to understand why it's OK under the DMCA but not under SOPA.

Fourth Amendment Too

We should not limit this to simply the First Amendment. A critical issue is that the content industry is being police and judicial powers (normally reserved to the State) to private companies that negate the law as serving society. Instead the law is now providing legal protection to a specific segment of society while (at the same time) eliminating legal protection for the rest of society. Laws that serve a particular segment of society at the expense of the rest of society are unjust.

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I don't think that's right. There is a chance for counter-notification before anything happens.

There is. But it's woefully lopsided. There is no penalty for false notices by rightsholders, but counternotices must be made under penalty of perjury. Everything is structured to allow rightsholders to send as many notices as they want with zero risk, and to incentivize service providers to immediately comply with those notices.

why SOPA is necessary

If the courts had got on board with our censorship efforts we would not need to bypass them. This is why we want the SOPA so we don't have to prove anything in order to censor... U brought this on yourself u freetards.

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Perhaps you ought to read the definition of a rogue site where it says the site must be dedicated to infringing activity with no other significant lawful purpose. FUD much?

Unfortunately a takedown can be sent based on the "good faith belief" that a site is "dedicated to infringing activities", all the incentives are for service providers to automatically comply, and there is no penalty to the rightsholder if the site is later declared legal (whereas there is penalty of perjury for the site owners if they file a counternotice and lose)

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The one filing the notice does so under penalty of perjury, just like the DMCA if I recall correctly.

Not true. The only part under penalty of perjury for the one filing the notice is their statement that they are an authorized agent of the rightsholder. Everything else is completely penalty-free. Meanwhile, EVERYTHING in the counternotice is made under penalty of perjury. That's one of the major imbalances of this bill.

(sorry to repeat this in several spots on this thread but it's a really important part - the bill is worded to make it sound like there is penalty of perjury on both sides, when in fact it's not at all the same)

Footnote 4 displays Tribe's bias: "SOPA Section 103 targets speech based on its content, and the bill is justified by reference to “the content of the regulated speech,” United States v. Eichman, 496 U.S. 310, 318 (1990) (citation and internal quotation marks omitted), i.e., whether the message or substance of the speech infringes copyright or trademark rights. Therefore, SOPA is properly subject to the strictest version of First Amendment scrutiny . . . ."

Huh? How can an expert on copyright and First Amendment doctrine pretend like SOPA gets strict scrutiny? Give me a break. This analysis is so biased that I have to wonder who hired him to write it. Was it Google?

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That is why I said the DCMA would seem to be Constitutional. It still have several weaknesses that raise Constitutional concerns such as the takedown of fair use content.

But with SOPA and PIPA, as others have already said, constitute prior restraint on and entire site. To say that the removal of revenue from a website's operation would not result on the site being taken down is disingenuous.

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Not true. The only part under penalty of perjury for the one filing the notice is their statement that they are an authorized agent of the rightsholder. Everything else is completely penalty-free. Meanwhile, EVERYTHING in the counternotice is made under penalty of perjury. That's one of the major imbalances of this bill.

Untrue, Marcus.

Section 103(b)(4)(vii): "A statement that the information in the notification is accurate, and, under penalty of perjury, that the signatory is authorized to act on behalf of the holder of the intellectual property right harmed by the activities described in subsection 24 (a)(1)."

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Don't forget that foreign websites face the legal loophole of an AG, making unknown and unquntifiable notices to take down sites, with no determination of how much time had to take place between correspondence and take down.

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You will notice the order of the sentence structure. The penalty of perjury only applies to the section stating the signatory is an authorized agent. There is no penalty of perjury pertaining to the accuracy of the request.

A Poison Pill for SOPA

SOPA should be amended so that the same rules apply to off-line reproduction as apply to on-line. This way, any self-service copy business that allows a customer to reproduce a copyrighted work is subject to the same penalties. As are digital camera manufacturers, etc.

I hope this would make it clear how over-the-top the law is when Kinko's ability to take credit cards can be removed by a single accusation without any judicial proceedings.

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"It's equivalent to the police closing down your store and demolishing it because one of your customers happened to do something illegal while in your store."

Pure and utter bullshit, and you know it.

Look, it's pretty simple. If your "user generated content" is legal, what's the problem? The real issue lies in the fact that so much of the "user generated content" is either remixes of other works, or uses copyright content as the basis for it's work (such as music, images, etc). Rather than truly producing unique work, too much of what is out there is just plain illegal, and not much more.

If you have original work, you have no issues.

So yeah, if it means that it kills crappy reposts, pirated content, and cheap remix videos, then yes, it kills user content. The world is probably a better place without it anyway, and to be fair, it's not legal even under current laws, so why worry?

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Nice try, but a fail.

Some of the "rap" sites taken down were packed with illegal remixes, pirated content, and the like. Whatever protected speech might have been nixed wasn't significant compared to the actual action and actual intent of the sites.

Your nuclear example is bullshit, end to end, and you know it. These sites don't have 1 or 2 offending items on them, they were packed end to end, and provided a system that encouraged users to keep it up. So 1 or 2 civilians were killed, but you got rid of 100,000 criminal acts. Seems like a good trade.

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Wow. Only a day and you already forgot about Dajaz1. Dajaz1 spent an entire year in legal limbo because ICE could not figure out just how it was infringing. Eventually, ICE had to relent and give them back their domain name.

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That is a valid interpretation of that sentence. Obviously they should clean up the language to make it clear that the whole thing is under penalty of perjury, not just the signature.

The counter-notification language is clearer: "A statement under penalty of perjury that the owner or operator, or registrant, has a good faith belief that it does not meet the criteria of an Internet site dedicated to theft of U.S. property as set forth under this section."

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Sorry, Joe, but this argument is just sloppy. I've been led to understand that you're a law student. I certainly hope your teachers would catch something like this.

English 101: this is a compound sentence - two clauses joined by a conjunction, and the clauses are independent of each other. To avoid conclusion, they aren't necessarily "independent clauses" as that's a technical term, but they are mutually independent.

We can write the sentence as "A statement [clause 1] and [clause 2]." Taking a page from algebra, we can turn this into "A statement [clause 1] and a statement [clause 2]." while retaining most of the meaning. [Clause 1] is "that the notification is accurate," while [clause 2] is "under penalty of perjury, that the signatory is authorized to act on behalf of the holder of the intellectual property right harmed by the activities described in subsection 24(a)(1)."

For the meaning you wish to apply, it would have to read "A statement, under the penalty of perjury, that the notification is accurate and that the signatory is authorized to act on behalf of the holder of the intellectual property right harmed by the activities described in subsection 24(a)(1)."

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"Obviously they should clean up the language to make it clear that the whole thing is under penalty of perjury, not just the signature."

And when they do, you'll have a point. Until then, the natural reading is the proper interpretation. As such, there is no penalty of perjury for the copyright holder of "Mr. Pig Goes on a Killing Spree" to send notices to each and every website on the internet, subjecting advertisers and payment processors to litigation liability if they don't cut the cords in 5 days.

I also seem to recall something about the SOPA counternotice beeing toothless. DMCA requires content to be reposted if a proper counternotice is submitted. I was under the impression that SOPA counternotice had no ushc obligation.

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I don't know if it was intentional or not. I was reading it the other way, but I see that your interpretation is truer to the text. Rather than speculate about intention, let's just agree that the perjury penalty should apply to the whole notice.

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The main conflict here between your opinion and those disagreeing with you is that you are arguing from a position of what supporters ostensibly want to accomplish with the bill and the others are arguing with what the bill will effect as written. You may be completely right in that the bill is not intended to shut down all sites with user generated content, but as the bill is written, it will. One has only to look at the abuses under the DMCA to see how feelings of self-entitlement felt by media middlemen can lead to chilling effects completely unintended by congress.

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So why does the notice-and-takedown procedure in the DMCA pass constitutional muster... ?

During the Diebold takedowns, and in a few other cases since then, groups of committed volunteers —Americans and our friends around the world— have mustered to ensure that documents remain published and readable on the 'net.

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I don't think it's that hard to say what the intent was. The more-or-less same clause is used for the notice and counter-notice, but the words "under penalty of perjury" are specifically moved from coming immediately after "A statement..." to being right at the end. Clearly there was an intention to limit the penalty on one side.

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You're conveniently leaving out the fact that more than one user posts content to sites that host user-generated content. Since it is impossible to know what is infringing prior to a court determining it and to pre-emptively filter out said content, it doesn't matter if some of your users post original, legal content. SOPA doesn't distinguish between sites with one or one million instances of infringing content. SOPA targets websites, rather than the infringing works, and thus operates on an all or nothing strategy. And that broadbrush will violate a lot of free speech.

Re: sopapilla

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Clearly no one has thought this thru to its logical conclusion.
We're all sharing just as hard as we can but it's the way were doing it that is the problem.
Now we all know how much our politicians love a
good war but no one in the tech community wants to declare that we are at war.
So allow me to be the first and declare war on the entertainment industry!
There...I feel better already.
now we all know that if you share online that the opposition can take shots at you....maybe not right away but they will track you down...even if it
takes hundreds of years to do so
(that's why copyrights last so long)
The solution? Sneaker Net.
You young whipersnappers out there may not remember Sneaker Net,but before computers were connected we had Floppies!
when you had something to share you put on your sneakers and with floppy in hand you would run down the hall and hand your floppy to your co-worker or next door neighbor, etc.
It's how the industry got started.
Now I know at least three people who know at least three people who know at least three people,etc,etc.
You do the math.
Now when that new overpriced unavailable new release hits the shelves, it can go viral worldwide in a matter of days

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In my view the DMCA does not pass Constitutional muster either, but we have learned to live with it because there is "some" remedy for the accused.

It is like if a bully kicks you in the shins everyday and you can't get him to stop so you start wearing shin guards. After a while you are just glad he isn't punching you. The whole SOPA think is like him putting on brass knuckles and loading his shotgun while he tells you it is only for those who really deserve it.

Re: meh..

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I can do you one better. You can keep your sneaker-net. What we need is an encrypted, distributed, file system, built on top of the bit torrent protocol. A system where each file is broken up across multiple nodes, each segment encrypted, with the CRC done after the encryption, on each file fragment.

On top of that you can layer distributed websites, and all sorts of other fun things.

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SOPA has nothing to do with shutting down user generated content - it is about taking it counterfeit and copyright violating websites.

As if those could easily be distinguished.

The point is this:

At present it is possible to put up a site hosting user generated content without the expense of manually vetting every submission. This means that content appears instantly (notice how long it takes for comments to appear here when the spam filter is triggered and you have to wait for manual moderation).

You only have to act under existing law when someone complains - so you can safely leave the policing of copyright to the rightsholders.

SOPA would, at minimum, force manual manual moderation onto such sites - as you yourself admit. This is hugely expensive and would kill many businesses.

I believe that this is actually the intention of those who are behind the bill - since they want to kill the competition.

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So basically if you don't like something, then it's no big deal if it's destroyed in a violation of free speech and due process. What a bastion of values you are!

And by the way, do you REALLY think that big entertainment companies will hesitate to obliterate original works? They see original work as taking money out of their pockets. They'll trump up a fake excuse and have that work gone pronto.

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Absolutely right. The MPAA and RIAA hate that people online can make music, make TV shows and have them viewed by millions... and they're not getting any of that money. They've lost control, and it will only become more pronounced with time.

So they want to kill the small businesses, the small artists, and the kids who put videos of themselves on youtube. They want to rewind the world to the 1970s.